"On January 1, Mrs. Jones presented to Dr. Gold's office complaining of a lump in her right breast, correct?"

Again, this calls only for a yes or no.

No explanation needed.

"Doctor, when a patient complains of a breast lump, good medical practice requires that the doctor perform a physical examination, correct?"

This calls only for a yes or no answer.

He may argue that taking a patient history would be the first thing to do.

BUT, I didn't ask anything about taking a history yet.

Since the doctor has now exceeded the boundary of our ground rules, I must let the jury know that he just stepped outside of his agreed-upon boundary...

"Doctor, a few minutes ago you made me certain promises, correct?"
"Yes."
"You promised me that if I ask you a question that calls only for a yes or no answer, you will answer yes or no, correct?"
"Yes."
"Great. You also promised that if you didn't know the answer, you'd tell me you didn't know, without giving me any explanation, correct?"
"Yes."

"Well, just now I asked you this question...Doctor, when a patient complains of a breast lump, good medical practice requires that the doctor perform a physical examination, correct?"
"Yes."

"Rather than answer my question yes or no, you gave me an explanation about patient history, correct?"
"Well, patient history is important because you..."
"Doctor, let me stop you here. When I asked, when a patient complains of a breast lump, good medical practice requires that the doctor perform a physical examination," can you answer that question yes or no?"

"Yes, I can."
"Great. What's your answer Doctor?"
"Yes."

"Excellent. Moving on now..."

"Doctor, you'd agree that when a patient complains of a breast lump it's important to take a thorough medical history, correct?"
"Yes."
"You want to know how long this condition existed, correct?"
"You want to know how it first started, right?"
"You want to know how the patient first noticed it, true?"
"You want to know where the patient felt the lump, right?"
"You want to know whether the patient felt the lump move, correct?"
"You need to know if the lump stayed in one place, true?"

These are all leading questions.

They only call for yes or no answers.

No explanations needed.

If the doctor tries to explain ANYTHING, I immediately bring him right back to those promises he made me at the very beginning of my cross examination.

Just in case you were wondering, the doctor has already spent hours explaining his answers when the defense attorney asked him questions during his direct questioning. In addition, after I am done questioning the doctor, the defenes lawyer will again have an opportunity to ask his medical expert open-ended questions to again explain some of his answers.

Let's get back to my cross examination...

"A physical examination would require the physician to palpate the breast, true?"
"He'd do this examination while the patient was lying down, correct?"
"He'd also do this examination while the patient was sitting up, correct?"

"Would you agree that a physician who fails to obtain a thorough, detailed medical history, violates the basic standards of medical care?"

"Well, not necessarily. It all depends on how you define thorough or detailed."

"Doctor, do you remember the promises you made to me at the beginning of my cross examination?"
"Yes."
"You promised to answer my questions yes or no, right?"
"Yes."

"Can you answer this question yes or no?"
"No, I can't."
"Ok. When I asked that question, was there anything in my question that called for an explanation?"
"Umm, no."
"Ok. Just to be clear, when I asked whether you'd agree that a physician who fails to obtain a thorough, detailed medical history, violates the basic standards of medical care, you can't answer that yes or no, correct?"
"Correct."

"Doctor, would you agree that good medical practice requires a physician obtain a medical history when a patient presents with a complain of a breast lump?"
"Yes."

"Would you agree that a physician who FAILED to obtain a history in light of a complaint of a breast lump, violates the basic standard of medical care?"

He has to say yes.

Otherwise he looks unreasonable.

He's going to try to wiggle out of this one.

He'll argue about what type of history needs to be obtained.

He'll argue about what constitutes a complete or thorough history.

He'll want to argue about the patient not providing full detailed information rather than placing blame on the doctor for not asking the right questions.

To learn the key question an attorney needs to know in a failure to diagnose breast cancer case, watch the video below, then keep reading under the video...

You'll also notice that up till this point, the doctor has been on a VERY SHORT leash.

I'm not allowing him the opportunity to explain ANYTHING.

By asking ONLY short, leading questions that call for yes or no, I am limiting him to how he answers.

This is highly effective IF done correctly.

The moment you slip up and ask the doctor "Why did Dr. Gold not perform a physical examination of this patient," you're dead in the water.

This expert will catch your mistake and take ten minutes to tell the jury that what Dr. Gold did was perfectly ok. He'll explain that this is no big deal. Then he'll claim that you and your expert are barking up the wrong tree.

If this expert is believable, you could easily lose your case by allowing him to talk and explain.

An experienced trial attorney will NEVER ask a hostile witness these questions...

HOW,

WHY,

TELL US MORE,

EXPLAIN PLEASE.

These all get the witness to again open up and show his expertise to the jury.

You've just given the expert lots of slack in his 'leash' with the jury.

Now, he's free to roam.

That roaming will only get you and your case in trouble.

Big trouble.

Instead, you hold that leash tight.

Very tight.

You don't let it go.

You show the doctor and the jury who is in control of your cross examination.

You get the doctor to either agree with you or disagree.

"Doctor, would you agree that good medical practice requires that a patient who complains of a breast lump needs a biopsy?"
"Yes."
"The reason why is because that lump may be cancerous, correct?"
"Yes."

"Either the doctor performs the biopsy himself, or he sends the patient to a breast surgeon for biopsy, correct?"
"Yes."
"Would you agree that if the treating doctor does not perform breast biopsies, good medical practice requires he send the patient to a breast surgeon to get this done?"
"Yes."
"Would you agree that failing to refer the patient to a breast surgeon for a biopsy would be a violation from the basic standards of medical care?"

The expert is going to want to argue with me about the wording of that question.

Ultimately, he'll have to answer it.

He has to agree.

"Doctor, would you also agree that when a patient complains of a palpable breast lump that good medical practice requires you to send the patient for a breast sonogram?"
"Yes."
"Would you agree that failing to refer the patient for a breast sonogram in light of a palpable breast mass would be a departure from good medical care?"

Again, he has to agree, even though he won't want to.

"Doctor, in this case, is there any medical note to confirm that Dr. Gold obtained a medical history on January 1?"
"Well, there's no note for that date but Dr. Gold testified at his pretrial deposition that..."
"WAIT, Doctor. STOP!"

"Do you remember at the beginning of my questioning you promised to only answer yes or no to my questions?"
"Yes."
"Great. Was there anything I asked in my last substantive question that called for an explanation?"

He has to say no.

"Doctor, I'll ask my question again..."
"Was there anything in Dr. Gold's note from January 1 to indicate that he obtained a medical history from the patient?"
"Uh, no."
"Based upon your prior testimony today, you agree that failing to obtain a medical history from a patient who complained of a palpable breast lump would be a violation from the basic standard of medical care, correct?"

He won't want to give in so easily on this question.

He'll have to though.

It may take some reminding him of his initial promises and what he already testified to.

"Doctor, in reviewing Dr. Gold's notes, did you see anywhere that he referred the patient to a breast surgeon for a biopsy?"
"No."
"Would you agree that Dr. Gold does not perform breast biopsies?"
"Yes, he said that himself."

"Knowing the Dr. Gold doesn't perform breast biopsies and that the patient had a palpable breast lump in her right breast, would you agree that failing to refer her out to a breast surgeon for a biopsy would be a clear violation from the basic standards of medical care?"

Again, he will want to argue over specific words.

The bottom line, after bringing him back in line using his own promises at the beginning of my cross examination has to lead to him answering 'yes'.

These are just a few strategies, that if implemented correctly, can be a very powerful tool in controling the defense's medical expert during cross examination.

To learn about my best cross examination ever, I invite you to watch the quick video below...

Have questions about your matter that happened here in New York?

I invite you to call me. I can answer your questions. This is what I do every day and would love to chat with you.

To reach Gerry, call him now at 516-487-8207

The material on this website is for informational purposes only. Mr. Oginski practices law exclusively in the State of New York.

We do not practice law in any other State. Please do not send any written materials to this office until you have spoken and/or communicated with us. We cannot consider you a client until such time as we have consulted with you, and met with you personally. Since all cases are different and legal authority can and does change, it is important to remember that prior results cannot and do not guarantee similar outcomes with respect to any future matter in which any lawyer or law firm may be retained. To the extent that this website discusses past cases the firm has handled, or in any way mentions the firm or its services, New York courts may deem this to be attorney advertising.